Citation Nr: 1325387 Decision Date: 08/12/13 Archive Date: 08/16/13 DOCKET NO. 08-20 711 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a psychiatric disorder, to include depression and posttraumatic stress disorder (PTSD), to include as secondary to a service-connected disability. 2. Entitlement to service connection for a right ankle disability, to include as secondary to a service-connected left ankle disability. 3. Entitlement to a compensable evaluation for a bilateral hearing loss disability. 4. Entitlement to an evaluation in excess of 10 percent prior to April 12, 2010 and in excess of 20 percent thereafter for a left ankle disability. 5. Entitlement to an evaluation in excess of 30 percent prior to June 7, 2010 and in excess of 50 percent thereafter for headaches. 6. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Patrick Kelly, Attorney WITNESSES AT HEARING ON APPEAL Appellant, Spouse, and Son ATTORNEY FOR THE BOARD H. Bunker, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1971 to March 1984. This case comes before the Board of Veterans' Appeals (Board) on appeal from multiple rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran, his wife, and his son testified at a Board hearing at the RO in Waco, Texas in March 2013. This transcript has been associated with the file. The issue of entitlement to service connection for a psychiatric disorder is being decided. The remaining issues are addressed in the REMAND portion of the decision below and are REMANDED to the Department of Veterans Affairs Regional Office. FINDING OF FACT The Veteran's psychiatric disorder is related to a service-connected disability. CONCLUSION OF LAW The criteria for the establishment of service connection for a psychiatric disorder have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) Since the Board is granting entitlement to service connection for a psychiatric disorder the entire benefit sought on appeal has been granted. Thus, no purpose would be served by undertaking an analysis of whether there has been compliance with the notice and duty to assist requirements set out in the VCAA. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110. Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). See Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a non-service-connected condition by a service-connected condition is also compensable under § 3.310(a). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected condition and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). With respect to the first element, current disability, VA examinations in January 2007 and August 2009 resulted in diagnoses of major depressive disorder with psychosis and obsessive compulsive disorder and major depression with psychotic features, respectively. This element is satisfied. The second element is also satisfied as service connection is in effect for headaches. This brings us to the third element, medical nexus. The Board finds the medical evidence on this matter is in equipoise. Following an August 2009 VA examination, the examiner opined that it was less likely as not that the Veteran's depression was caused by his service-connected headaches. However, the Veteran's treating physician, in April 2012, opined that his headaches were the reason for his psychiatric problems. The Board will resolve all reasonable doubt in favor of the Veteran and the claim of entitlement to service connection for a psychiatric disorder is granted. 38 U.S.C.A. § 5107 (West 2002). ORDER Entitlement to service connection for a psychiatric disorder is granted. REMAND The evidence of records shows that the Veteran was considered disabled by the Social Security Administration (SSA) as of June 4, 2010. See SSA Notice of Award. However, the VA has not obtained any records from the SSA or any other agency which is paying the Veteran disability benefits. The RO should also request that the Veteran provide a release for benefit information from the Teacher Retirement System of Texas. For secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or the result of service-connected disease or injury or that service-connected disease or injury has chronically worsened the disability for which service connection is sought. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). At the examination afforded the Veteran in August 2009, the examiner did not address whether the Veteran's left ankle disability aggravated the right ankle disability. The most recent VA examinations for the Veteran's service-connected hearing loss and left ankle disability were in November 2010, almost 3 years ago. New examinations should be obtained. Although the issue of entitlement to a TDIU was most recently denied by the RO in a July 2011 rating decision, this decision did not take into account whether the Veteran could maintain substantially gainful employment based on a service-connected psychiatric disorder, which has now been granted service connection. Accordingly, the case is REMANDED for the following action: 1. Request from the SSA complete copies of any disability determination(s) it has made concerning the Veteran and copies of the medical records that served as the basis for any such decision(s). If these records are not available, a negative reply is required. 2. Obtain any appropriate authorizations for release of medical information from the Teacher Retirement System of Texas for any disability retirement information related to the Veteran. The RO should then request these records. If these records are not available, a negative reply is required. 3. Request that the August 2009 VA examiner offer an addendum opinion regarding the Veteran's right ankle disability. The entire claims file, to include this REMAND, must be reviewed by the examiner in conjunction with the examination. The examiner should indicate on the examination report that (s)he has reviewed the folder in conjunction with the examination. The examiner should state whether the Veteran's right ankle disability was aggravated by the Veteran's service-connected left ankle disability. The examiner is requested to provide a fully reasoned explanation for his or her opinions, based on his or her clinical experience, medical expertise, and established medical principles. The examiner is advised that by law, an examiner's statement that an opinion is based on the medical expertise of the examiner, but without a fully reasoned explanation, is not a legally sufficient opinion and will likely result in a return of the claim to the examiner. 4. The RO shall schedule the Veteran for a VA examination by a clinician with appropriate expertise in order to determine the current severity of the Veteran's left ankle disability. The entire claims file, to include this REMAND, must be reviewed by the examiner in conjunction with the examination. The examiner should indicate on the examination report that (s)he has reviewed the folder in conjunction with the examination. The examiner(s) must conduct any appropriate interviews and clinical testing to respond to the inquiries, including x-rays of the Veteran's joints. The examiner must report the complete range of motion for the left ankle. In reporting the results of range of motion testing, the examiner must identify any objective evidence of pain and the specific limitation(s) of motion, if any, accompanied by pain. To the extent possible, the examiner must assess the degree of severity of any pain. . Tests of joint movement against varying resistance must be performed. The extent of any incoordination, weakened movement, and excess fatigability on use must also be described by the examiner. The examiner must assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. If not feasible, the examiner must provide a detailed explanation and rationale for why such could not be accomplished. The examiner must also express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups (if the Veteran describes flare-ups), and, to the extent possible, provide an assessment of the functional impairment on repeated use or during flare-ups. If feasible, the examiner must assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. If not feasible, the examiner must provide a detailed explanation and rationale for why such could not be accomplished. 5. The RO shall schedule the Veteran for a VA examination by a clinician with appropriate expertise in order to determine the current severity of the Veteran's bilateral hearing loss disability. The entire claims file, to include this REMAND, must be reviewed by the examiner in conjunction with the examination. The examiner should indicate on the examination report that (s)he has reviewed the folder in conjunction with the examination. 6. After completing the above directives, have an appropriate VA examiner provide an opinion as to the effects of the Veteran's service-connected disabilities on his ability to maintain employment consistent with his education and occupational experience. The entire claims file, including this REMAND, must be reviewed by the examiner in conjunction with the opinion. The examiner should confirm in the examination report that (s)he has reviewed the folder in conjunction with the examination. The examiner should note that the Veteran is service-connected for headaches, a left ankle disability, tinnitus, a scar of the left wrist, a bilateral hearing loss disability, and a psychiatric disorder. Based on a review of the case and the claims file, the examiner must provide an opinion as to whether the Veteran's service-connected disabilities, acting alone or together, preclude him from securing and following substantially gainful employment consistent with his education and occupational experience. All opinions provided must include an explanation of the bases for the opinion. If the requested opinion cannot be made without resort to speculation, the examiner must state this and specifically explain why this is so. 7. After the above has been completed, the RO must review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. See Stegall v. West, 11 Vet. App. 268 (1998). 8. After undertaking any additional development deemed necessary, readjudicate the remaining issues on appeal. If the benefits sought on appeal remain denied, in whole or in part, the Veteran and his representative must be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond. The case must then be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ JOHN Z. JONES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs